UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MARTINI, ELIZABETH

v.

FED NATL MTGE ASSN


98-7068a

D.C. Cir. 1999


*	*	*


Tatel, Circuit Judge: A jury found the Federal National  Mortgage
Association liable under Title VII and the District  of Columbia Human
Rights Act for sexual harassment and  retaliation against one of its
employees, Elizabeth Martini,  and awarded nearly $7 million in
damages. The district court  reduced her damages to $903,500. In this
appeal, Fannie  Mae claims that Martini's Title VII suit was untimely
because  she initiated it less than 180 days after she filed
discrimina- tion charges with the Equal Employment Opportunity Com-
mission. In her cross-appeal, Martini challenges several legal 
conclusions underlying the district court's reduction of her  damages.
Finding that Title VII requires complainants to  wait 180 days before
suing in federal court so that the  Commission may informally resolve
as many charges as possi- ble, we reverse the judgment in her favor
and remand with  instructions to dismiss her untimely suit without
prejudice.  Since Martini's claims on cross-appeal are fully briefed
and  likely to arise again in a new trial, we decide them as well, 
holding first that frontpay is not subject to Title VII's cap on 
compensatory damages, second that the district court should  have
reallocated the portion of Title VII damages above the  statutory cap
to Martini's recovery under D.C. law, and third  that D.C. law permits
Martini to recover punitive damages on  a given claim as long as she


I


Appellee Elizabeth Martini went to work for appellant  Federal National
Mortgage Association as a debt manager in  1988. By 1995, she was
earning $71,000 a year and held  valuable stock options. In early
1994, she alleged, one of her  co-workers, Forrest Kobayashi, began
harassing her because  of her sex, humiliating her with abusive
comments in the  presence of colleagues and subordinates, and
excluding her  from meetings to which she should have been invited.
Marti- ni complained to her supervisor, Linda Knight, who also 
supervised Kobayashi, but Knight failed to come up with a  solution.
Despite Martini's complaints to Fannie Mae's Office  of Diversity,
Knight recommended Kobayashi for a pro- motion. Once promoted,
Kobayashi was asked by Knight to  reorganize his department. Designed
by Kobayashi and ap- proved by Knight, the reorganization eliminated
only one job:  Martini's. In March 1995, Knight fired Martini, telling
her  that Fannie Mae would give prospective employers no infor- mation
about her job performance. Martini applied to five  firms with
positions similar to the one she held at Fannie  Mae, but received no
offers. She eventually abandoned her  job search, enrolling in a


On April 10, 1995, Martini filed a sexual harassment and  retaliation
charge with the Equal Employment Opportunity  Commission. Twenty-one
days later, at her request, the  EEOC issued a "right-to-sue" letter
authorizing her to bring  a private action in federal court. In doing
so, the EEOC  acted pursuant to 29 C.F.R. s 1601.28(a)(2) (1998),
which  provides that the Commission may, upon a complainant's 
request, authorize a private suit "at any time prior to the 
expiration of 180 days from the date of filing the charge with  the
Commission; provided, that [an appropriate Commission  official] has
determined that it is probable that the Commis- sion will be unable to
complete its administrative processing  of the charge within 180 days
from the filing of the charge."  Issuance of the right-to-sue letter
terminated further EEOC  processing of Martini's charge. See id. s
1601.28(a)(3); Oral  Arg. Tr. at 22 (quoting Martini's right-to-sue


20, 101 days after filing the EEOC charge, Martini sued  Kobayashi,
Knight, and Fannie Mae in the United States  District Court for the
District of Columbia, alleging sexual  harassment and retaliation in
violation of Title VII and the  D.C. Human Rights Act. Although Fannie
Mae offered  Martini a new position one month later, she rejected it 
because it would have put her in close contact with Kobayashi  and
Knight, and because Fannie Mae offered her no protec- tion from
further harassment.


Before trial, Fannie Mae moved to dismiss, arguing that  the EEOC's
early right-to-sue regulation, 29 C.F.R.  s 1601.28(a)(2), violates
the 180-day waiting period for pri- vate suits established by 42
U.S.C. s 2000e-5(f)(1) (1994),  which says:


If a charge filed with the Commission ... is dismissed by  the
Commission, or if within one hundred and eighty  days from the filing
of such charge ... the Commission  has not filed a civil action ... or
the Commission has not  entered into a conciliation agreement to which
the person  aggrieved is a party, the Commission ... shall so notify 
the person aggrieved and within ninety days after the  giving of such
notice a civil action may be brought  against the respondent named in
the charge....


The district court denied the motion.


After an eleven-day trial, the district court gave the jury a  single
set of instructions for both the Title VII and the D.C.  Human Rights
Act claims. Finding the defendants liable for  harassment and
retaliation, the jury awarded Martini nearly  $7 million in
damages--$153,500 in backpay, $1,894,000 in  frontpay and benefits,
and $3,000,000 in punitive damages  under Title VII, as well as
$615,000 in compensatory damages  and $1,286,000 in punitive damages
under the D.C. Human  Rights Act.


In a post-trial motion, Fannie Mae again challenged the  timeliness of
Martini's suit under section 2000e-5(f)(1) of Title  VII. Finding
pre-180 day private suits not prohibited by  section 2000e-5(f)(1),
the district court upheld the early right-


to-sue regulation. See Martini v. Federal Nat'l Mortgage  Ass'n, 977 F.
Supp. 464, 471-72 (D.D.C. 1997). The district  court noted, however,
that the D.C. Circuit "has not ad- dressed this issue" and that "there
is a split of authority"  among other courts. Id. at 471.


Fannie Mae also sought a reduction in damages, arguing  that the
evidence was insufficient to justify the large awards,  that punitive
damages unsupported by compensatory dam- ages are impermissible under
D.C. law, and that Title VII's  cap on compensatory damages, see 42
U.S.C. s 1981a(b)(3),  applied to Martini's frontpay award. Finding
these argu- ments persuasive, the district court reduced the Title VII
 damages to $453,500, see Martini, 977 F. Supp. at 469-71,  478-79,
and reduced the D.C. Human Rights Act damages to  $450,000, see id. at
474-79. In order to avoid a new trial,  Martini agreed to a remittitur
order prohibiting her from  challenging the reduction in damages based
on evidence  insufficiency.


On appeal, Fannie Mae argues that the district court  wrongly rejected
its challenge to the timeliness of Martini's  suit. Although Fannie
Mae also claims that the jury verdict  should be set aside because it
improperly resulted from  passion or prejudice, Fannie Mae waived that
claim by failing  to object to allegedly inflammatory statements by
Martini's  lawyer at trial. See Hooks v. Washington Sheraton Corp., 
578 F.2d 313, 316-17 (D.C. Cir. 1977). Martini raises three  claims on
cross-appeal: that Title VII's damages cap is  inapplicable to
frontpay, that any Title VII damages exceed- ing the cap should be
reallocated to her D.C. Human Rights  Act recovery, and that D.C. law
allows punitive damages to be  awarded in the absence of compensatory


II


The 1972 amendments to Title VII established "an integrat- ed,
multistep enforcement procedure" prescribing the powers  and duties of
the EEOC once a discrimination charge has  been filed. Occidental Life
Ins. Co. v. EEOC, 432 U.S. 355,  359 (1977) (discussing the Equal
Employment Opportunity 


Act of 1972, Pub. L. No. 92-261, 86 Stat. 103, 104-07 (codified  at 42
U.S.C. s 2000e-5)). The statute directs the EEOC to  notify the
respondent of the charge within 10 days, to investi- gate the charge,
and to determine "as promptly as possible  and, so far as practicable,
not later than one hundred and  twenty days from the filing of the
charge" whether there is  reasonable cause to believe that the charge
is true. 42 U.S.C.  s 2000e-5(b). If the EEOC finds no reasonable
cause, then  it must dismiss the charge. See id. If it finds
reasonable  cause, then it must attempt to resolve the dispute "by
infor- mal methods of conference, conciliation, and persuasion." Id. 
"If within thirty days after a charge is filed ... the Commis- sion
has been unable to secure from the respondent a concilia- tion
agreement acceptable to the Commission, the Commis- sion may bring a
civil action against any [non-governmental]  respondent...." Id. s


In language lying at the heart of Fannie Mae's challenge to  the
timeliness of Martini's suit, the statute further provides:


If a charge filed with the Commission ... is dismissed by  the
Commission, or if within one hundred and eighty  days from the filing
of such charge ... the Commission  has not filed a civil action ... or
the Commission has not  entered into a conciliation agreement to which
the person  aggrieved is a party, the Commission ... shall so notify 
the person aggrieved and within ninety days after the  giving of such
notice a civil action may be brought  against the respondent named in
the charge....


Id. According to Fannie Mae, this sentence sets forth the  exclusive
conditions under which a Title VII complainant may  sue: Either the
Commission must dismiss the charge, or 180  days must elapse without
informal resolution of the charge or  an EEOC lawsuit. Because section
2000e-5(f)(1) implicitly  prohibits a private suit within 180 days
unless the charge is  dismissed, Fannie Mae argues, the EEOC's early
right-to-sue  regulation is unlawful.


Defending the regulation, Martini, supported by the EEOC  as amicus
curiae, points out that section 2000e-5(f)(1), while  establishing
certain conditions giving rise to a private cause 


of action, nowhere makes those conditions exclusive. Accord- ing to
Martini, the 180-day provision specifies the maximum,  not minimum,
time that Title VII complainants must wait  before going to court.
Although she acknowledges a statuto- ry policy favoring administrative
over judicial processing  during the first 180 days after a charge is
filed, Martini  argues that the early right-to-sue regulation, by
allowing  complainants to sue immediately when the EEOC has deter-
mined that administrative processing likely will be futile (i.e., 
likely will not lead to dismissal, conciliation, or an EEOC  lawsuit
within 180 days), furthers the goal of providing quick,  effective
relief for aggrieved persons without frustrating the  competing goal
of encouraging informal resolution of com- plaints.


Two of our sister circuits, the Ninth and Eleventh, have  squarely
addressed this issue; both agree with Martini that  the early
right-to-sue regulation comports with congressional  intent underlying
section 2000e-5(f)(1)'s 180-day provision.  See Sims v. Trus Joist
Macmillan, 22 F.3d 1059, 1061 (11th  Cir. 1994); Brown v. Puget Sound
Elec. Apprenticeship &  Training Trust, 732 F.2d 726, 729 (9th Cir.
1984); cf. Weise v.  Syracuse Univ., 522 F.2d 397, 412 (2d Cir. 1975)
(prior to  issuance of section 1601.28(a)(2), allowing EEOC to issue 
early right-to-sue notice"[i]n the circumstances of this case"). 
Although many district courts also agree with Martini, a  comparable
number agree with Fannie Mae and have dis- missed complaints filed
before expiration of the 180-day  period. Compare Montoya v. Valencia
County, 872 F. Supp.  904, 906 (D.N.M. 1994) (finding early suits
impermissible),  New York v. Holiday Inns, Inc., 656 F. Supp. 675, 680
 (W.D.N.Y. 1984) (same), Mills v. Jefferson Bank East, 559 F.  Supp.
34, 35 (D. Colo. 1983) (same), Spencer v. Banco Real, 87  F.R.D. 739,
747 (S.D.N.Y. 1980) (same), and Loney v. Carr- Lowrey Glass Co., 458
F. Supp. 1080, 1081 (D. Md. 1978)  (same), with Parker v. Noble
Roman's, Inc., 1996 WL 453572,  at *2 (S.D. Ind. June 26, 1996)
(finding early suits permissi- ble), Defranks v. Court of Common
Pleas, Civ. A. No. 95-327,  1995 WL 606800, at *6 (W.D. Pa. Aug. 17,
1995) (same),  Rolark v. University of Chicago Hosps., 688 F. Supp.


(N.D. Ill. 1988) (same), Cattell v. Bob Frensley Ford, Inc., 505  F.
Supp. 617, 622 (M.D. Tenn. 1980) (same), Vera v. Bethelem  Steel
Corp., 448 F. Supp. 610, 614 (M.D. Pa. 1978) (same), and  Howard v.
Mercantile Commerce Trust Co., No. 74-417C(1),  1974 WL 302, at *2
(E.D. Mo. Nov. 27, 1974).


Fannie Mae argues that Occidental Life Insurance Co. v.  EEOC
forecloses any doubt about section 2000e-5(f)(1)'s  meaning. There the
Supreme Court said that "a natural  reading of [section 2000e-5(f)(1)]
can lead only to the conclu- sion that it simply provides that a
complainant whose charge  is not dismissed or promptly settled or
litigated by the EEOC  may himself bring a lawsuit, but that he must
wait 180 days  before doing so." 432 U.S. at 361. We agree with
Martini  that the quoted language is dictum. Decided prior to the 
EEOC's regulation authorizing early private suits, see 42 Fed.  Reg.
47,828 (1977), Occidental Life examined whether section 
2000e-5(f)(1)'s 180-day provision functions as a statute of 
limitations on the EEOC's power to bring a lawsuit where a 
complainant chooses not to sue after 180 days. The Supreme  Court said
no: "Nothing in [section 2000e-5(f)(1)] indicates  that EEOC
enforcement powers cease if the complainant  decides to leave the case
in the hands of the EEOC rather  than to pursue a private action."
Id.; see also id. at 366  ("The subsection imposes no limitation upon
the power of the  EEOC to file suit in a federal court."). Although
the Court  reached its conclusion by offering what it believed to be
the  best reading of section 2000e-5(f)(1), its holding turned not on 
that interpretation, but only on the narrower, negative conclu- sion
that nothing in section 2000e-5(f)(1)'s text or legislative  history
imposes a 180-day limitation on the EEOC's power to  sue. Equally
significant, in Occidental Life the EEOC had  sought to continue
enforcement proceedings both during and  beyond the 180-day period,
whereas here the Commission  authorized the complainant to sue upon
finding it unlikely  that administrative processing would resolve the
charge with- in 180 days. The issue presented in this case--whether 
Congress intended to impose a 180-day waiting period not  only in the
first situation but also in the second--was neither  raised in


Court. Because the Court's "natural reading" of section  2000e-5(f)(1)
was not essential to its holding, cf. Young v.  Community Nutrition
Institute, 476 U.S. 974, 980 (1986)  (finding ambiguity under Chevron
even where one "reading of  the statute may seem to some to be the
more natural  interpretation"), Occidental Life's interpretation of
that provi- sion does not dictate the result in this case. Like the
Ninth  and Eleventh Circuits, we therefore undertake our own analy-
sis of the statute.


In "review[ing] an agency's construction of the statute  which it
administers," we must ask "[f]irst, always, ...  whether Congress has
directly spoken to the precise question  at issue." Chevron U.S.A.
Inc. v. Natural Resources Defense  Council, Inc., 467 U.S. 837, 842
(1984). "If the intent of  Congress is clear, that is the end of the
matter; for the court,  as well as the agency, must give effect to the
unambiguously  expressed intent of Congress." Id. at 842-43. The
"precise  question at issue" here is this: Does section 2000e-5(f)(1) 
specify the exclusive conditions under which Title VII com- plainants
may bring private lawsuits in federal court? Put  differently, did
Congress clearly intend to prohibit private  suits within 180 days
after a charge is filed as long as the  EEOC has not dismissed the
charge? In discerning congres- sional intent, we owe no deference to
the agency's views, see  id. at 843 n.9 ("The judiciary is the final
authority on issues of  statutory construction and must reject
administrative con- structions which are contrary to clear
congressional intent."),  and because we ultimately find congressional
intent clear in  this case, we need not consider what level of
deference would  govern EEOC interpretation of an ambiguous statutory
provi- sion, see EEOC v. Arabian-American Oil Co., 499 U.S. 244,  257


We begin with the statutory text relied on by Fannie Mae.  Section
2000e-5(f)(1) says that an aggrieved party may sue  under Title VII if
the Commission dismisses the charge or if  it neither sues the
respondent nor reaches an acceptable  conciliation agreement within
180 days after the filing of the  charge. See 42 U.S.C. s
2000e-5(f)(1). Although the statute  nowhere says that complainants
may sue only if one of these 


conditions occurs, Fannie Mae--invoking the maxim expres- sio unius est
exclusio alterius, i.e., the "[m]ention of one  thing implies
exclusion of another," Black's Law Dictionary  581 (6th ed.
1990)--argues that the statute's explicit authori- zation of private
suits after 180 days implies congressional  intent to prohibit such


A non-binding rule of statutory interpretation, not a bind- ing rule of
law, the expressio unius maxim "is often misused."  Shook v. District
of Columbia Fin. Responsibility & Manage- ment Assistance Auth., 132
F.3d 775, 782 (D.C. Cir. 1998);  see Cheney R.R. Co. v. ICC, 902 F.2d
66, 68-69 (D.C. Cir.  1990) (refusing to apply expressio unius). "The
maxim's  force in particular situations," we have said, "depends
entirely  on context, whether or not the draftsmen's mention of one 
thing ... does really necessarily, or at least reasonably, imply  the
preclusion of alternatives." Shook, 132 F.3d at 782. That  in turn
depends on "whether, looking at the structure of the  statute and
perhaps its legislative history, one can be confi- dent that a normal
draftsman when he expressed 'the one  thing' would have likely
considered the alternatives that are  arguably precluded." Id. Here,
as in Cheney, Clinchfield  Coal Co. v. Federal Mine Safety & Health
Comm'n, 895 F.2d  773, 779 (D.C. Cir. 1990), and Mobile Communications
Corp.  of Am. v. FCC, 77 F.3d 1399, 1404-05 (D.C. Cir. 1996), the 
expressio unius maxim, unsupported by arguments based on  the
statute's structure or legislative history, " 'is simply too  thin a
reed to support the conclusion that Congress has  clearly resolved
[the] issue.' " Id. at 1405 (citation omitted);  see Cheney, 902 F.2d
at 69 (noting that expressio unius is "an  especially feeble helper in
an administrative setting, where  Congress is presumed to have left to
reasonable agency  discretion questions that it has not directly


In addition to relying on expressio unius, Fannie Mae  pointed out at
oral argument that the language of section  2000e-5(f)(1)'s 180-day
provision parallels the language of  section 2000e-5(f)(1)'s first
sentence, which governs the tim- ing of EEOC-initiated lawsuits: "If
within thirty days after a  charge is filed ... the Commission has
been unable to secure  from the respondent a conciliation agreement
acceptable to 


the Commission, the Commission may bring a civil action  against any
[non-governmental] respondent." 42 U.S.C.  s 2000e-5(f)(1). Relying on
Martini's concession that the 30- day provision imposes a mandatory
waiting period on suits by  the EEOC, see Appellee's Reply Br. at 3
n.1, Fannie Mae  argues that the 180-day provision imposes a similar
mandato- ry waiting period on suits by private plaintiffs.


Like the 180-day provision, the 30-day provision specifies  one
condition, not necessarily an exclusive condition, under  which the
EEOC may sue. Fannie Mae's parallelism argu- ment thus raises a
question analogous to the one presented in  this case: May the EEOC
sue within 30 days after a charge  is filed if a recalcitrant employer
declares at the outset that it  will not accept any EEOC-negotiated
conciliation agreement?  Not only have the parties not briefed this
issue, but even if  the 30-day provision requires the EEOC to wait 30
days  before filing suit, the parallelism argument by itself still 
would not compel Fannie Mae's interpretation of the statute.  To be
sure, "there is a natural presumption that identical  words used in
different parts of the same act are intended to  have the same
meaning." Atlantic Cleaners & Dyers, Inc. v.  United States, 286 U.S.
427, 433 (1932). But that presump- tion "is not rigid and readily
yields whenever there is such  variation in the connection in which
the words are used as  reasonably to warrant the conclusion that they
were em- ployed in different parts of the act with different intent."
Id.  On numerous occasions, both the Supreme Court and this  court
have determined, after examining statutory structure,  context, and
legislative history, that identical words within a  single act have
different meanings. See, e.g., Dewsnup v.  Timm, 502 U.S. 410, 417-20
(1992) (relying on statutory  context and legislative history to give
different meanings to  the words "allowed secured claim" in different
subsections of  the same bankruptcy provision); Atlantic Cleaners, 286
U.S.  at 435 (relying on legislative history to give different mean-
ings to the words "restraint of trade or commerce" in differ- ent
sections of the Sherman Act); Weaver v. United States  Information
Agency, 87 F.3d 1429, 1437 (D.C. Cir. 1996)  (allowing the agency to


"cleared" and "clearance" in different subsections of the same 
regulation). Without inquiring further into Title VII's struc- ture,
context, and legislative history, we cannot conclude with  the
certainty required under Chevron's first step that the  parallel
sentences within section 2000e-5(f)(1) have parallel  meanings.


Like its use of the expressio unius maxim, Fannie Mae's  parallelism
argument thus leaves the question before us  unanswered. Nothing in
section 2000e-5(f)(1)'s language  forecloses Martini's view that the
180-day provision is simply  a maximum, not minimum, waiting period
for complainants  seeking access to federal court. To show that
Martini's view  unambiguously frustrates Congress's intent, Fannie Mae
 must shore up its reading of the statute's text with indepen- dent
arguments based on structure, context, or legislative  history.


Taking up this challenge, Fannie Mae observes that the  180-day
provision governing private suits is part of an elabo- rate
enforcement scheme detailing who may bring certain  actions and when.
See 42 U.S.C. s 2000e-5(f)(1) to (2).  Relying on Hallstrom v.
Tillamook County, 493 U.S. 20  (1989), and Perot v. Federal Election
Comm'n, 97 F.3d 553  (D.C. Cir. 1996), Fannie Mae says that courts
have strictly  enforced statutory waiting periods designed to foster
informal  resolution of complaints, notwithstanding the likely or even
 certain futility of administrative dispute resolution. The  cases
cited by Fannie Mae do not support its position. In  Hallstrom, the
Supreme Court enforced a 60-day notice and  waiting period for
plaintiffs wishing to file suit under the  Resource Conservation and
Recovery Act. See 493 U.S. at  29. Noting that Congress imposed the
60-day period to  encourage administrative enforcement of
environmental regu- lations, see id., the Court rejected the argument
that where  government agencies had "explicitly declined to act, it
would  be pointless to require the citizen to wait 60 days to com-
mence suit," id. at 30. Although this appears to support  Fannie Mae,
the statute at issue in Hallstrom differs from  Title VII in a
critical respect: It expressly prohibits the filing  of a lawsuit


42 U.S.C. s 6972(b)(1), the Court said: "The language of this 
provision could not be clearer.... Actions commenced prior  to 60 days
after notice are 'prohibited.' Because this lan- guage is expressly
incorporated by reference into s 6972(a), it  acts as a specific
limitation on a citizen's right to bring suit."  Id. at 26. Perot is
equally inapplicable. In that case, our  enforcement of a 120-day
waiting period for private suits  under the Federal Election Campaign
Act, despite petition- er's claim that agency action would be futile,
turned on the  fact that the Act explicitly provides for "exclusive"
agency  jurisdiction during the 120-day period. See 97 F.3d at 558 
(quoting 2 U.S.C. ss 437d(e), 437c(b)(1) (1994)). Because  Title VII
contains no similar language prohibiting early pri- vate suits or
making agency jurisdiction exclusive, neither  Hallstrom nor Perot
provides a basis for us to conclude that  private suits within 180
days would impermissibly upset Title  VII's enforcement scheme in
cases where timely EEOC- negotiated resolution is improbable.


Fannie Mae argues that the likely futility of administrative 
processing does not defeat the statutory policy of encouraging 
informal resolution of charges because Congress intended the  180-day
period to serve as a mandatory "cooling off" period  during which the
parties might voluntarily resolve their dis- pute, even in the absence
of agency action. Not only does  Fannie Mae cite no legislative
history to support this claim,  but the fact that the statute
authorizes the EEOC to sue  within the 180-day period if it is unable
to secure an accept- able conciliation agreement demonstrates that
Congress could  not have intended to establish a mandatory "cooling
off"  period. The statute even authorizes a complainant to sue  within
180 days if the EEOC dismisses the charge. Fannie  Mae nowhere
explains why it makes sense to read a "cooling  off" period into the
statute for cases where the EEOC cannot  complete administrative
processing within 180 days, but not  for cases where the EEOC
dismisses the charge or sues the  respondent within 180 days.


Next, Fannie Mae points to legislative history indicating  that
Congress enacted the 180-day provision governing pri- vate suits with
"an acute awareness of the enormous backlog 


of cases before the EEOC and the consequent delays of 18 to  24 months
encountered by aggrieved persons awaiting admin- istrative action on
their complaints." Occidental Life, 432  U.S. at 369 (citing House and
Senate hearings as well as floor  debate). By choosing a 180-day
window for informal resolu- tion of charges despite knowing that many
charges would not  be resolved within 180 days, Fannie Mae argues,
Congress  clearly intended the 180-day period to be the minimum time 
complainants must wait before going to court, even if EEOC  processing
would be futile. Again, we are unconvinced.


We have no doubt that when Congress wrote section  2000e-5(f)(1) in
1972, it knew all about the long delays in  EEOC processing of
discrimination charges. See S. Rep. No.  92-415, at 23 (1971); H.R.
Rep. No. 92-238 (1971), reprinted  in 1972 U.S.C.C.A.N. 2137, 2147.
Congress enacted the 180- day provision as "a means by which [an
aggrieved party] may  be able to escape from the administrative
quagmire which  occasionally surrounds a case caught in an overloaded
admin- istrative process." 1972 U.S.C.C.A.N. at 2148; see S. Rep.  No.
92-415, at 23. After the House and Senate passed the  1972 amendments,
the Conference Committee explained in a  statement accompanying the


[The 180-day provision] is designed to make sure that  the person
aggrieved does not have to endure lengthy  delays if the Commission
... does not act with due  diligence and speed. Accordingly, the
[180-day provi- sion] allow[s] the person aggrieved to elect to pursue
his  or her own remedy under this title in the courts where  there is
agency inaction, dalliance or dismissal of the  charge, or
unsatisfactory resolution.


118 Cong. Rec. 7168 (1972) (section-by-section analysis of 1972 
amendments). But this account of section 2000e-5(f)(1) con- tains the
same ambiguity as the statutory language itself:  Did Congress simply
intend to guarantee the right to sue  after 180 days, or did it
further intend to prohibit private  suits within 180 days? To be sure,
the right to sue after 180  days is the only means that Congress
provided for escaping  the administrative process. But Martini


we think--that authorizing early private suits in cases where  the EEOC
likely will be unable to resolve the charge within  180 days furthers
Congress's intent to "allow the person  aggrieved to elect to pursue
his or her own remedy ... in the  courts where there is agency
inaction, dalliance ... or unsat- isfactory resolution." Id.


Thus, neither section 2000e-5(f)(1)'s language nor the legis- lative
history cited by Fannie Mae reveals "the unambiguous- ly expressed
intent of Congress" on "the precise question at  issue" in this case.
Chevron, 467 U.S. at 843. If our inquiry  were to end here, we likely
would agree with the Ninth and  Eleventh Circuits that the early
right-to-sue regulation does  not violate section 2000e-5(f)(1). Under
Chevron's first step,  however, we have a duty to conduct an
"independent exami- nation" of the statute in question, New York
Shipping Ass'n  v. Federal Maritime Comm'n, 854 F.2d 1338, 1355 (D.C.
Cir.  1988), looking not only "to the particular statutory language 
at issue," but also to "the language and design of the statute  as a
whole," K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291  (1988); see
also United States Nat'l Bank v. Independent Ins.  Agents of Am.,
Inc., 508 U.S. 439, 455 (1993) ("Over and over  we have stressed that
'[i]n expounding a statute, we must not  be guided by a single
sentence or member of a sentence, but  look to the provisions of the
whole law, and to its object and  policy.' ") (quoting United States
v. Heirs of Boisdore, 49 U.S.  (8 How.) 113, 122 (1849)). We thus turn
to a provision of  Title VII not relied on by Fannie Mae that we asked
the  parties to address at oral argument--a provision that we  think
eliminates any ambiguity about the question before us.


Section 2000e-5(b) prescribes the EEOC's duties once a  charge is
filed. See supra at 6. It says that the Commission  "shall"
investigate the charge and "shall" make a reasonable  cause
determination "as promptly as possible and, so far as  practicable,
not later than one hundred and twenty days from  the filing of the
charge." 42 U.S.C. s 2000e-5(b). Thus,  although the statute allows
some flexibility in the timing of  reasonable cause determinations,
the Commission's duty to  investigate is both mandatory and
unqualified. Yet an early  right-to-sue notice typically terminates


the charge, see 29 C.F.R. s 1601.28(a)(3), precisely what  happened in
this case. Although the record nowhere contains  Martini's
right-to-sue letter, her counsel read it to us at oral  argument: "
'With the issuance of this notice of right to sue,  the Commission is
terminating [its] process with respect to  this charge.' " Oral Arg.
Tr. at 22 (quoting Martini's right-to- sue notice). We cannot square
this early termination of the  process or the regulation authorizing
it, see 29 C.F.R.  s 1601.28(a)(3), with section 2000e-5(b)'s express
direction to  the Commission that it investigate all charges.


Of course, Fannie Mae does not challenge section  1601.28(a)(3), but we
think section 1601.28(a)(2) alone violates  section 2000e-5(b) of the
statute for the same reason. Even  in the absence of a regulation
formally terminating adminis- trative processing, issuance of an early
right-to-sue letter  would have the same effect. We think it
implausible that an  agency as chronically overworked as the EEOC
would either  begin or continue to investigate charges for which it
has  authorized an alternative avenue of relief. In most such  cases,
the charge will simply go to the bottom of the pile.  Although after
180 days this result comports with congres- sional intent, see S. Rep.
No. 92-415, at 23, prior to 180 days it  conflicts with section
2000e-5(b)'s unambiguous command.


Martini and the EEOC both argue that requiring a com- plainant to wait
180 days when the agency knows it will be  unable to investigate the
charge would be futile. We dis- agree. Section 1601.28(a)(2) does not
limit the issuance of  early right-to-sue letters to situations where
the EEOC has  determined that it is impossible to investigate within
180  days. Rather, the regulation allows the Commission to au- thorize
a private suit when it "has determined that it is  probable that [it]
will be unable to complete its administrative  processing of the
charge within 180 days." 29 C.F.R.  s 1601.28(a)(2) (emphasis added).
If the term "probable"  means "more likely than not," then the
regulation allows the  EEOC to authorize a private suit even when
there is as much  as a 49 percent chance that it will complete
administrative  processing within 180 days. And in this case, the
Commis- sion made that probability determination only 21 days after 


Martini filed her charge. We do not see how such a specula- tive
prediction of futility can justify departure from section 
2000e-5(b)'s express requirement that the Commission inves- tigate


In any event, the regulation would violate section 2000e- 5(b) even if
the Commission could say with certainty that it  cannot fully process
a charge within 180 days. Congress well  understood that the EEOC's
limited resources preclude it  from investigating every charge within
180 days, see supra at  14-15, but nevertheless "hoped that recourse
to the private  lawsuit will be the exception and not the rule." 118
Cong.  Rec. 7168. Contrary to this congressional "hope," the early 
right-to-sue regulation makes it less likely that "the vast  majority
of complaints will be handled through the offices of  the EEOC." Id.
Without authority to allow early suits, the  EEOC would face more
internal pressure, along with external  pressure from complainants, to
improve its investigatory ca- pacities--for example, by streamlining
its procedures for  handling charges, by setting higher case clearance
goals, by  improving training, or by reallocating staff and other re-
sources among regions or between national and regional  offices--so
that it could resolve as many charges as possible  within 180 days. If
such efforts proved inadequate to achieve  statutory compliance, then
the Commission would be forced  to ask Congress to appropriate
additional funds. Whether  authorizing early private suits is
preferable to enlarging the  Commission's budget is a question for
Congress, not the  EEOC or this court. We conclude only that greater
compli- ance with the mandatory duties that Congress expressly 
prescribed for the EEOC in section 2000e-5(b) will occur  when all
complainants must wait 180 days before filing suit  than when the
Commission may authorize them to sue earlier.


As we stated at the outset, the precise question at issue in  this case
is whether Congress clearly intended to prohibit  private suits within
180 days after charges are filed. See  supra at 9. Because the power
to authorize early private  suits inevitably and impermissibly allows
the EEOC to relax  its aggregate effort to comply with its statutory
duty to  investigate every charge filed, we think the answer is yes.


This straightforward reading of section 2000e-5(b) finds  support in
legislative history of section 2000e-5(f)(1) not cited  by either
party. While the House version of the 1972 bill  containing what is
now section 2000e-5(f)(1) authorized pri- vate actions after 180 days,
see 117 Cong. Rec. 32,113 (1971);  118 Cong. Rec. 1510 (1972), the
Senate version authorized  private actions after only 150 days, see
118 Cong. Rec. 4945  (1972). Noting this discrepancy, the conference
committee  chose the 180-day period. See H.R. Rep. No. 92-899 (1972), 
reprinted in 1972 U.S.C.C.A.N. 2179, 2182. Although this  alone does
not unequivocally show that Congress was unwill- ing to permit private
suits within 180 days--Congress simply  might have been unwilling to
guarantee the right to sue  within 180 days--we note that at least two
major sponsors of  the 1972 bill clearly understood the provision to
prohibit early  suits. Senator Javits said that it required
complainants  "necessarily [to] sit[ ] around awaiting 6 months." 118
Cong.  Rec. 1069 (1972) (Senate debate). Senator Dominick called it  a
"180-day private filing restriction." Id. In any event, by  choosing
180 days instead of 150 days, Congress indicated its  belief that
informal resolution of charges, even as late as the  180th day, would
be preferable to allowing complainants to  sue earlier. Cf. 42 U.S.C.
s 2000e-5(f)(1) (authorizing courts  to stay private suits for up to
60 days to allow "further efforts  of the Commission to obtain
voluntary compliance"). Allow- ing private suits within 180 days eases
the pressure on the  EEOC to resolve charges informally, thus
defeating the ex- plicit congressional policy favoring


In sum, examining "the language and design of the statute  as a whole,"
K Mart Corp., 486 U.S. at 291, and indulging all  plausible inferences
from the legislative history, we conclude  that the EEOC's power to
authorize private suits within 180  days undermines its express
statutory duty to investigate  every charge filed, as well as
Congress's unambiguous policy  of encouraging informal resolution of
charges up to the 180th  day. We thus hold that Title VII complainants
must wait 180  days after filing charges with the EEOC before they may
sue  in federal court. We recognize that this conclusion runs 


counter to that reached by our sister circuits. See Sims, 22  F.3d at
1061; Brown, 732 F.2d at 729. But with all respect,  those courts did
not read section 2000e-5(f)(1) in light of  section 2000e-5(b), nor
did they consider the legislative histo- ry that we discovered.


This brings us to the question of relief. We agree with  both parties
that the 180-day waiting period is not jurisdic- tional. As the
Supreme Court said in Zipes v. Trans World  Airlines, Inc., "filing a
timely charge of discrimination with  the EEOC is not a jurisdictional
prerequisite to suit in federal  court, but a requirement that, like a
statute of limitations, is  subject to waiver, estoppel, and equitable
tolling." 455 U.S.  385, 393 (1982). But apart from the futility
arguments that  we have found inadequate to relieve the EEOC of its
statuto- ry duty to process every charge for at least 180 days,
Martini  suggests no equitable considerations that might warrant an 
exception to the 180-day rule.


Finding Martini's suit untimely, we vacate the district  court's
judgment and remand with instructions to dismiss her  complaint
without prejudice. Because the EEOC stopped  processing her charge 21
days after she filed it, Martini may  file a new complaint in district
court only after the Commis- sion has attempted to resolve her charge
for an additional 159  days.


III


Although we have vacated the judgment in Martini's favor,  we proceed
in the interest of judicial economy to address her  claims challenging
the district court's reduction of her dam- ages. See Committee of 100
on the Fed. City v. Hodel, 777  F.2d 711, 718-19 (D.C. Cir. 1985). The
claims are fully  briefed and likely to arise again in a new trial.
Contrary to  Fannie Mae's contention, moreover, Martini never waived 
these claims when she agreed to remittitur; as we read the  record,
the remittitur covered only the district court's reduc- tion of
damages against Fannie Mae on her D.C. law retalia- tion claim based
on insufficient evidence of the scope of these  damages. See Martini,
977 F. Supp. at 478-79; Martini v. 


Federal Nat'l Mortgage Ass'n, No. 95-1341, at 2 (D.D.C. Mar.  27, 1998)
("Martini Mem. Op."); see also William Inglis &  Sons Baking Co. v.
Continental Baking Co., 942 F.2d 1332,  1343 (9th Cir. 1991) ("[T]he
waiver implicit in remittitur [is] a  narrow one that involves only
the right to appeal the reduc- tion of damages effected by the
remittitur.").


Frontpay


Under Title VII, "[t]he sum of the amount of compensatory  damages
awarded under this section for future pecuniary  losses, emotional
pain, suffering, inconvenience, mental an- guish, loss of enjoyment of
life, and other nonpecuniary  losses, and the amount of punitive
damages awarded under  this section, shall not exceed" $300,000 for an
employer as  large as Fannie Mae. 42 U.S.C. s 1981a(b)(3). Martini 
claims that the district court erred in applying Title VII's  damages
cap to the frontpay award. According to Fannie  Mae, "future pecuniary
losses" include frontpay. See  McKnight v. General Motors Corp., 908
F.2d 104, 116 (7th  Cir. 1990) (defining frontpay as "a lump sum ...
representing  the discounted present value of the difference between
the  earnings [an employee] would have received in [her] old 
employment and the earnings [she] can be expected to receive  in [her]
present and future, and by hypothesis inferior, em- ployment"). We


In the provision immediately preceding the damages cap,  the statute
says: "Compensatory damages ... shall not  include backpay, interest
on backpay, or any other type of  relief authorized under section
706(g) of the Civil Rights Act  of 1964." 42 U.S.C. s 1981a(b)(2).
Section 706(g) authorizes  district courts to order "reinstatement ...
with or without  back pay ... or any other equitable relief as the
court deems  appropriate." Id. s 2000e-5(g)(1). Like the majority of
cir- cuits, we have regarded frontpay as an equitable remedy 
available under section 706(g) both before and after the Civil  Rights
Act of 1991 made compensatory damages available  under Title VII. See
Barbour v. Merrill, 48 F.3d 1270, 1277- 78 (D.C. Cir. 1995); Anderson
v. Group Hospitalization, Inc., 


820 F.2d 465, 473 (D.C. Cir. 1987); see also Williams v.  Pharmacia,
Inc., 137 F.3d 944, 951-52 (7th Cir. 1998); Win- sor v. Hinckley
Dodge, Inc., 79 F.3d 996, 1002 (10th Cir.  1996); Lussier v. Runyon,
50 F.3d 1103, 1107 (1st Cir. 1995);  Hadley v. VAM P T S, 44 F.3d 372,
376 (5th Cir. 1995);  Hukkanen v. International Union of Operating
Eng'rs, 3  F.3d 281, 286 (8th Cir. 1993); Weaver v. Casa Gallardo,
Inc.,  922 F.2d 1515, 1528 (11th Cir. 1991). Section 1981a(b)(2) 
therefore excludes frontpay from the range of compensatory  damages
subject to the damages cap under section  1981a(b)(3).


The Tenth and Eighth Circuits have recently reached the  same
conclusion. See McCue v. Kansas Dep't of Human  Resources, 165 F.3d
784, 792 (10th Cir. 1999); Kramer v.  Logan County Sch. Dist. No. R-1,
157 F.3d 620, 626 (8th Cir.  1998). We respectfully disagree with the
Sixth Circuit's  contrary holding, see Hudson v. Reno, 130 F.3d 1193,
1203-04  (6th Cir. 1997), on which the district court relied, see
Martini  Mem. Op., No. 95-1341, at 3, since its assertion that
frontpay  "is not authorized by the plain language of s 706(g)
itself,"  Hudson, 130 F.3d at 1204, conflicts with our precedent.


Reallocation of Damages


The district court gave the jury a single set of instructions 
applicable to Martini's claims under both Title VII and the  D.C.
Human Rights Act. See 12/9/96 Trial Tr. at 33. As  required by law,
the court never informed the jury about  Title VII's damages cap. See
42 U.S.C. s 1981a(c)(2). Over  the objections of both parties, the
district court gave the jury  a verdict form with "special
interrogatory questions" for  assessing damages for each type of claim
(harassment or  retaliation) against each defendant (Fannie Mae,
Kobayashi,  or Knight) under each statute (Title VII or D.C. Human 
Rights Act). Martini v. Federal Nat'l Mortgage Ass'n, No.  95-1341
(D.D.C. Dec. 13, 1996) (entering judgment on the  verdict for
plaintiff). The jury awarded Title VII damages  well in excess of the
statutory cap. The district court limited  these damages (excluding
backpay) to $300,000. See Martini,  977 F. Supp. at 471. Martini


VII damages exceeding the statutory cap should have been  reallocated
to her recovery under the D.C. Human Rights  Act. Again, we agree.


Because the jury used exactly the same instructions in  evaluating
Martini's Title VII and D.C. law claims, and be- cause the jury had no
knowledge of Title VII's damages cap,  it had no legal basis for
distinguishing between the two  statutes. Thus, for any one claim
against any one defendant,  distinguishing between damages that the
jury awarded under  Title VII and damages that it awarded under the
D.C.  Human Rights Act makes no sense. For example, although  the jury
awarded punitive damages of $2 million under Title  VII and $1 million
under D.C. law against Fannie Mae on  Martini's retaliation claim,
there is no basis for saying that  the jury intended to impose a $2
million award specifically  under Title VII, plus a $1 million award
specifically under  D.C. law. Instead, the most sensible inference is
that the  jury sought to impose a total of $3 million in punitive dam-
ages against Fannie Mae for retaliation. To be sure, only  $300,000 of
that amount may be awarded under Title VII.  But we see no reason why
Martini should not be entitled to  the balance under the D.C. Human
Rights Act, since the local  law contains the same standards of
liability as Title VII but  imposes no cap on damages.


Were we not to treat damages under federal and local law  as fungible
where the standards of liability are the same, we  would effectively
limit the local jurisdiction's prerogative to  provide greater
remedies for employment discrimination than  those Congress has
afforded under Title VII. Such a result  would violate Title VII's
express terms: "Nothing in [Title  VII] shall be deemed to exempt or
relieve any person from  any liability, duty, penalty, or punishment
provided by any  present or future law of any State...." 42 U.S.C. s
2000e-7;  see id. s 2000e(i) (defining "State" to include the District
of  Columbia); see also Kimzey v. Walmart Stores, 107 F.3d 568,  576
(8th Cir. 1997) (holding that Title VII damages cap does  not apply to
discrimination claims under state law); Luciano 


v. Olsten Corp., 912 F. Supp. 663, 675 (E.D.N.Y. 1996) (reallo- cating
Title VII damages above the cap to plaintiff's state law  recovery on
the ground that "Title VII does not relieve a  defendant from
liability and the award of damages under  state law where a jury has
found such a violation under both  laws"). Other than traditional
judicial authority to reduce  damages due to excessiveness, the power
to limit total dam- ages in cases where plaintiffs sue under both
federal and local  law belongs to Congress and the D.C. Council, not


Availability of punitive damages under D.C. law


Turning finally to Martini's challenge to the district court's  holding
that D.C. law prohibits the award of punitive dam- ages where no
compensatory damages have been awarded on  a particular legal claim,
we think the controlling precedent is  Maxwell v. Gallagher, where the
D.C. Court of Appeals said  that "[a] plaintiff must prove a basis for
actual damages to  justify the imposition of punitive damages." 709
A.2d 100,  104 (D.C. 1998). Although the jury in this case assessed 
punitive damages but no compensatory damages against  Knight and
Fannie Mae on Martini's sexual harassment claim  under the D.C. Human
Rights Act, it did assess compensato- ry damages against Fannie Mae on
Martini's harassment  claim under Title VII. Since the court gave the
jury a single  instruction for finding liability under both Title VII
and D.C.  law, see supra at [23], we are inclined to believe that
Martini  "prove[d] a basis for actual damages" against Fannie Mae--
but not against Knight--on her harassment claim under D.C.  law. Id.;
see Dyer v. Bergman & Assocs., 657 A.2d 1132,  1139-40 (D.C. 1995)
(affirming punitive damage award in the  absence of compensatory
damage award where plaintiff had  proven actual injury and had
accepted a compensatory arbi- tration award). Because we have
dismissed Martini's com- plaint, however, we leave the proper
application of Maxwell  to the district court should this issue arise


IV


We vacate the district court's judgment and remand with  instructions
to dismiss the complaint without prejudice.


So ordered.